Tenant's Breach Claim Dismissed by Tenancy Tribunal

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[2025] NZTT 5134488

TENANCY TRIBUNAL AT CHRISTCHURCH | TE TARAIPIUNARA RETIHANGA KI ŌTAUTAHI

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] and [NAME] to pay [COMPANY] As Agent For [NAME] $87.50 from the bond, calculated as shown in table below.

2. The Bond Centre is to pay the bond of $2,200.00 (5502133-004) immediately apportioned as follows:

[COMPANY] As Agent For [NAME]: $87.50

[NAME] and [NAME]: $2,112.50

Description Landlord Tenant Compensation for cleaning and damage (by consent) $337.50 Compensation: unlawful entry $250.00 Total award $337.50 $250.00 Net award $87.50 Bond $87.50 $2,112.50

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Reasons:

1. Both parties attended the hearing. [NAME] attended for the landlord.

2. The tenant has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

3. The landlord had not made a cross application as at the hearing date but had provided the tenant with copies of invoices for cleaning and repairs following the end of the tenancy.

4. The tenant acknowledged some responsibility for these amounts but disputed the quantum.

5. Once matters below had been heard (and with consent of the parties,) I left the room to see if an agreement could be reached in relation to compensation by the tenant for cleaning and damage to windowsills.

6. An agreement was able to be reached and the amount awarded to the landlord for these items ($337.50) is ordered by consent.

Did the landlord breach the Act?

7. The tenant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.

8. The applicant claimed that the landlord breached section 45 of the Residential Tenancies Act 1986 (the Act) in a variety of ways.

9. These include:

a. Breach of the landlord’s obligation to supply the premises in a reasonable state of cleanliness;

b. Breach of the landlord’s obligation to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises;

10. Breaching these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 under section 45(1) and Schedule 1A Residential Tenancies Act 1986.

11. I note that failure of a landlord to attend to every request made by a tenant immediately, or even at all, may not amount to a failure to maintain under the Act.

12. A property need only be provided and maintained in, “a reasonable state of repair having regard to the age and character if the premises”.

13. The tenancy began on 5 October 2023.

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14. The landlord provided copies of invoices to show that the property had been professionally cleaned at a cost of $1,086.75 just before the tenancy began.

15. On 9 October 2023 the tenants emailed the landlords with a list of “concerns with the property along with the things that I request and things that need to be done/fixed along with pictures.”

16. The concerns included;

a. Garden work and rubbish removal from exterior;

b. Widow latches, frayed carpet and light fittings to be repaired;

c. Bathroom door shower seals broken;

d. Kitchen extractor fan filter to be replaced;

e. Cupboard door to be replaced;

f. Washing machine not washed or cleaned on inside and filter needs replacing;

g. Shower head in bathroom two needs replacing;

h. Curtains need cleaning (mould);

i. Carpets not cleaned;

j. Several plugs with exposed wiring or loose fittings to be repaired;

k. Mould on ceilings and concern as to potential water damage

l. Heat pump cleaning (due to “mould in the grill”);

m. The tenants also requested safety latches be put on the windows so they could be left open during the day.

n. Other matters were also mentioned but did not form part of the claims and have not been referred to here.

17. The landlord replied the next day saying they would take a week or so to review the items and said they would revert to the tenant with an update.

18. The tenant responded that they considered the heat pump and curtains to be health issues and wanted them to be addressed immediately.

19. The tenants acknowledged that the heat pump was cleaned in a timely way and an invoice was supplied by the landlord showing it was serviced on or around 17 October 2023.

20. There was no evidence that the curtains were a health issue but both parties provided evidence which confirms that there was visible staining on the linings. This was also acknowledged in the ingoing report which noted, in relation to curtains in most rooms, “booked to be cleaned with [NAME]”.

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21. The landlord reverted to the owner for instructions and advised the tenants of this on 11 October 2023.

22. On 25 October the landlord reverted back to the tenants to confirm that various maintenance items had been approved (safety stays, extractor fan repair, tidy of grounds, repair of electrical concerns, curtain cleaning, cupboard repair and repair of shower head and seals).

23. Copies of significant text and email correspondence was provided showing that different areas of work were dealt with over the next few months but not all of the work was completed and some was not completed to the satisfaction of the tenants.

24. Some confusion arose as to which shower was causing problems as one had been repaired prior to the tenancy beginning.

25. Additional confusion arose as the landlord thought work had been attended to but the tenant was not happy with the outcome (garden, kitchen extractor, carpet).

26. The landlord provided invoices to confirm that work had been done on one shower (of two in the property) immediately prior to the tenancy commencing. This included replacement of a showerhead and the comment that “pressure is the best it will be. It is a low pressure system.”

27. No work was completed on the other shower at that time (or at any time) and the landlord said this was because it was working when the plumber (who fixed the other shower) checked it.

28. The tenants claim they were unable to use the second shower at all during the tenancy. No evidence was provided in relation to the alleged defect.

29. The shower (that had already been repaired) was replaced in September 2024 at a cost of $5,617.75.

30. The extractor fan was fixed on or around 12 December 2023 ($253.08).

31. The tenants said that it still did not work well and it was eventually replaced in October 2024 ($805.00). The original extractor complied with the healthy homes standards and the filters had been replaced earlier in the tenancy as stated above.

32. Garden work was completed and invoiced on 15 November 2023 ($515.20), but the tenants felt that rubbish (garden and other) was left behind and beside the garage in a place where they may have wished to store items.

33. The landlord gave evidence of repairs that were carried out at the request of the tenant, including electrical work (which led to rewiring of the house), spouting clean and repairs to the garage door (all in October 2023). Stays were fitted to

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the windows in November 2023. Repairs to the carpet were completed in December 2023.

34. Some general and minor maintenance was completed in early March 2024.

35. Repairs were made to the spouting in March 2024.

36. The curtains were removed and cleaned according to an invoice dated 28 March 2024. This was following a 14-day notice issued by the tenants.

37. The tenants claim $7,200 in exemplary damages for these alleged breaches. This was primarily in connection with the curtains not being cleaned, the showers not being useable, and the debris not being cleared from behind the garage.

38. The landlord gave evidence that they did not consider the failure to clean the curtains a breach of the Act but had them bleached on receipt of the 14-day notice to maintain their relationship with the tenants.

39. I acknowledge that the landlord took some time to have the curtains cleaned especially when the landlord had agreed to do so in late October.

40. However, I do not consider the failure to have the curtains bleached earlier is a failure to maintain. There was no suggestion that the curtains were unable to perform their function and no proof that they were a health hazard.

41. There was no evidence provided that either shower was unusable. One was repaired just prior to the tenancy beginning and was replaced prior to the tenancy ending. There is no evidence that there was anything wrong with the other shower (other than being on a low-pressure system which is not a defect).

42. The landlord had arranged for additional garden work to be completed at the tenants’ request within a month or so after the tenancy began.

43. The tenants were not happy that some debris was left behind and beside the garage.

44. I do not consider this a failure to maintain and nor do I consider that there was any real impact on the tenants.

45. The applicant has not satisfied me that it is more likely than not that the landlord failed to provide or maintain the property in a reasonable state.

46. The tenant had an extremely long list of complaints about the tenancy, and many were dealt with in a timely way and at some expense. The owner spent many thousands of dollars trying to address the concerns of the tenants.

47. The tenants were not happy with the landlord’s response to some of the requests, but this does not amount to a failure to maintain and demonstrates that the landlord made efforts to address many of the tenant’s issues although they were not always addressed to the satisfaction of the tenants.

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48. I do not consider the remaining items have been proven to be breaches of the landlord’s obligation to maintain and therefore no exemplary damages can be awarded.

49. This claim is dismissed.

50. The tenants further consider that the landlord has failed to comply with the Healthy Homes Standards (HHS) ventilation, moisture ingress and drainage standards and draught standards.

51. The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.

52. The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.

53. The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise The HHS does provide exemptions in specific circumstances.

54. Breaching these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) of the Act.

55. The tenants must prove their claim on the balance of probabilities.

56. The landlord provided a healthy homes assessment dated 5 October 2021 showing that the property was compliant in all respects.

57. The tenants further alleged that when the shower was being replaced a leak was found from a toilet (under the house). This was unknown to the tenants prior to the discovery and was also unknown to the landlord. It was fixed immediately.

58. In this case I have determined that there is no evidence that the premises do not comply with the healthy homes requirements. The only supporting evidence provided is the assessment which says that the property does comply.

59. The heat pump was serviced as soon as the tenant’s requested this and the leak from the toilet (and subsequent moisture issue) was attended to as it became apparent.

60. Mould staining on curtains is not a breach of the HHS.

61. Mould in a property is not proof of a breach of the HHS. If the mould can be removed by cleaning it does not generally suggest a defect in the property itself.

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62. I do not find that the landlord has committed an unlawful act in relation to the HHS and no exemplary damages are appropriate.

63. This claim is dismissed.

64. [NAME] and [NAME] claim that the landlord has breached their quiet enjoyment (claim $3000.00).

65. This alleged breach was in relation to matters already covered elsewhere (concerns with frequent repairs and tradespeople coming to the property regularly to deal with the issues).

66. Tradespeople had to attend the property frequently to address the many issues raised by the tenants.

67. There was no indication that this amounted to harassment for which exemplary damages would be properly awarded so no damages can be considered under this heading.

68. This claim is dismissed.

69. [NAME] and [NAME] also claim the landlord has entered the premises without consent or notice.

70. A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.

71. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

72. The landlord asked a tradesperson to contact the tenant to arrange to install stays on the windows so that they could safely be left open for ventilation.

73. The tradesperson sent the tenants a text message to arrange a time. The message included the phrase, “when is a good time to do… or shall I just grab a key…”

74. Before the tenants were able to respond, the tradesperson obtained a key to the property from the landlord and attended to the work.

75. The tenants were unaware of this until they returned home and noticed that the work had been completed.

76. The landlord acknowledged that this should not have occurred without tenant permission. The representative said that many tenants prefer to have matters such as this attended to in their absence as they do not then have to take time off work to be present.

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77. He acknowledged that these tenants had let it be known (subsequent to this event) that they did not consent to tradespeople attending to work in their absence and the landlord said that this never happened again, despite the numerous tradespeople who had to attend the property during the tenancy.

78. The landlord gave evidence that they had expressed to the tradesperson that the work was to be completed with some urgency and said the tradesperson had taken that to mean he could attend without the tenant being present.

79. I find the landlord has technically committed an unlawful act.

80. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

81. The landlord said there was no intentional breach but rather, a miscommunication with the tradesperson.

82. The event occurred early in the tenancy, the landlord apologised, made sure that this never happened again and thought the matter was at an end.

83. I accept that there was no intention on the part of the landlord and so exemplary damages are not appropriate.

84. I do find that there has been an unintentional breach (albeit of a technical nature) of the landlord’s obligation to give notice and I award $250.00 in general damages to the tenant to acknowledge the unintentional breach.

85. The amount ordered is proved.

86. The applicant has not been substantially successful, so reimbursement of the filing fee is not ordered.

[NAME]

8 April 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

Reasons: